Workers Compensation and Vesting

[Guest amboyd]

If employees are receiving workers compensation for a number of months and then return to employment, does the time they are receiving workers comp. count for vesting purposes (for purposes of years of service credit and benefit accrual) under defined benefit and defined contribution plans. Both db pension and dc plans (ESOP, 401(k)) define the terms disability and recognized leaves of absence narrowly and workers comp would not seem to fit. A review of the state workers comp statute also did not provide specific guidance on this issue. Any guidance and suggestions would be appreciated.

Thank you.

[GBurns]

Based on other case law I would say that since it is not specifically excluded then it must be included. Logically if the drafter of the PD intented to exclude WC time they would have put it in just like they put in disability. If it is an omission then the rule is in favor of the employee, if it is ambiguous then again the ruling must be in favor of the employee. You might want amend the PD afterwards.

[AndyH]

I'm not a lawyer but based on a real life experience I agree. I think it can be excluded, but such exclusion needs to be in the document, or you need to have a specific reference to the appropriate DOL regulation which specifically says that it need not be credited. There is one, but I don't know the cite off hand.

[mbozek]

Need to read the plan to see what must be credited as hours of service. Under dol regs hours of service excludes hours for which employees is paid under WC or disability insurance laws. payments of wages. Plan which incorporates dol hrs of service reg can exclude service for which wc payment is received.

State wc laws regarding counting of wc payments for pension service are no not applicable because they are preempted by ERISA.

[Guest amboyd]

Thank you very much for your responses. The hours

of service definitions exclude periods an employee is

receiving workers comp, which basically answers the question regarding credit service.

Thanks again.